Splitting superannuation on marriage breakdown

The superannuation interests of married couples are now treated like other property.

Revisions to the Family Law Act that commenced on 28 December 2002 mean the superannuation interests of married couples are now treated like other property. This means that superannuation interests can be split if a couple decides to separate or divorce. Please note these new rules do not apply to same sex or de facto couples.

What evidence of separation or divorce is required?

In order to split superannuation interests of a couple, the trustee of the superannuation fund requires evidence that the parties have divorced or separated. Where the Court has not granted divorce (ie. a decree absolute), the spouses are required to provide the trustee with a separation declaration. The separation declaration must state that the spouses are married, but have separated and have lived separately and apart for a continuous period of at least 12 months immediately before the declaration time.

If the interest that is being split is more than the low post 1983 tax threshold (currently $175,000 for 2012/13), the spouse (or spouses) making the declaration must also state that in their opinion there is no reasonable likelihood of cohabitation being resumed.

How is a superannuation interest split or flagged?

Following a marriage breakdown, a trustee is permitted to ‘split’ a member’s superannuation interests when instructed to do so under the terms of a Superannuation Agreement or Court Order - in accordance with the Family Law Act, Family Law (Superannuation) Regulations and the Superannuation Industry Supervision Regulations.

Superannuation can be split in the growth phase (when the superannuation is still being accumulated) or in the payment phase (when a pension has begun to be paid). In turn, the superannuation interest can be split by a base (dollar) amount or percentage amount in growth phase, and by percentage amount in payment phase.

If a superannuation interest cannot be split immediately or if the parties want to defer the split until a more convenient time, the new legislation allows the interest to be flagged. The practical effect of flagging a super interest is to prohibit a trustee from transferring the flagged interest to another fund, or from making a benefit payment whilst the flag is in force.

The outline below summarises the sequence of events that usually take place before the trustee can split or flag a member’s superannuation interest.

Step 1 - Information request made for valuation purposes

To determine the value of a member’s superannuation interest, both parties (ie member and non-member spouse) can request information from the trustee of the fund.

Step 2 - Parties make a Superannuation Agreement or obtains a Court Order

The parties needs to provide the superannuation fund with a copy of a Superannuation Agreement or Court Order before the trustee can split a member’s interest. The agreement/order needs to specify how the interest has to be split – as a base amount or percentage split – and satisfy specific criteria before the trustee can implement it. The trustee can impose a ‘flag’ on a superannuation interest subject to a payment split to prevent the member from moving the funds elsewhere without their spouse’s knowledge.

Step 3 - Trustee effects a payment split or applies a payment flag following receipt of the Agreement or Order

The trustee must effect a payment split, or apply a payment flag, following the receipt of a valid agreement or order.

Which superannuation interests are affected by the new legislation?

The new regime covers both regulated and unregulated superannuation funds and applies to all interests held within an eligible superannuation plan, including:

  • Superannuation funds as defined by superannuation legislation
  • Approved deposit funds (ADF)
  • Retirement savings accounts (RSA)
  • Accounts within the meaning of the Small Superannuation Accounts Act 1995.

What superannuation interests still can’t be split?

The new legislation does not allow for the following superannuation interests to be split:

  • Life insurance office products (eg annuity and deferred annuity contracts)
  • Amounts under $5,000 – defined as ‘unsplittable’ under Family Law Regulations
  • Amounts paid to a member as a result of that member satisfying ‘compassionate grounds’
  • Amounts paid to a member as a result of severe financial hardship
  • Amounts paid as a result of a member’s ill health (note: timing conditions may apply)
  • Superannuation interests of same sex or de facto couples.

More information

For more information, please contact your financial adviser.

Zurich can assist you with contacting a financial adviser.

Accessing information

Revisions to the Family Law Act that commenced on 28 December 2002 mean that the superannuation interests of married couples are now treated like other property. This means that superannuation interests can be split if a couple decides to separate or divorce.

Who can request information regarding a member's superannuation interest?

Under the Family Law Act, only an 'eligible person' can make an application to the trustee for information about a member's superannuation interest. An 'eligible person' can be:

  • The member
  • The member's spouse
  • A person who plans to enter into a superannuation agreement with the member.

The Family Law Act requires the trustee to provide information to an 'eligible person' without notifying the member that the request for information has been made. The trustee is also prohibited from providing either the member or non-member spouse's address details to the other party.

How do I go about requesting information from Zurich Australian Superannuation Pty Limited ("Zurich") regarding a member's superannuation interest?

The trustee for Zurich's superannuation products is Zurich Australian Superannuation Pty Limited. Provided you are an 'eligible person', all you need to do is fill in a Form 6 - Request for information and send it to Zurich with a cheque for the search fee (see next question). After completing and submitting the form, Zurich may provide you with relevant information regarding the member's superannuation interest.

Information gathered through the Form 6 will facilitate the drawing of an Agreement or Court Order as it allows the non-member spouse (or person intending to enter an Agreement with the member) to find out the value of a member's superannuation interest.

How long will it take for Zurich to process the request for information?

Zurich will respond to the request within five business days following the receipt of the Form 6 and payment of the requisite search fee.

What happens when Zurich receives a Superannuation Agreement or Court Order?

Zurich will determine whether the Agreement or Court Order is valid. If it is not deemed valid, Zurich cannot comply with the order and will request that the Order or Agreement be redrafted to enable Zurich to comply.

If the Order or Agreement is valid, Zurich will send a letter to the member informing them that a Court Order or Agreement has been received in relation to their superannuation. Once a split has been applied, Zurich will send the non-member spouse a letter informing them of the options available. Options available to the non-member spouse include:

  • Maintaining their interest within the Zurich Master Superannuation Fund
  • Waiving their right to their entitlement to future payments by signing a Form 5 – Waiver Notice
  • Transferring their entitlement to another fund or cashing it out (if entitled to do so under relevant superannuation legislation) by filling in a Payment split - Redemption form.

Fees

Revisions to the Family Law Act that commenced on 28 December 2002 mean that the superannuation interests of married couples are now treated like other property. This means that superannuation interests can be split if a couple decides to separate or divorce.

What fees apply to requests for information?

Under the Family Law Act, Zurich is permitted to charge a fee to process requests for information. Zurich charges $110 for performing this service and the same fee applies whether the member’s interest is in the accumulation or pension phases of superannuation. A cheque made payable to ‘Zurich Australia Limited’ must accompany requests for information in order for them to be processed.

What fees apply when a payment split takes effect?

The table below also outlines the fees that apply if the trustee is instructed to make a valid payment split. Where a payment split is made, the relevant fee will be deducted directly from the member’s investment and/or non-member spouse’s entitlement for the following products: Zurich Superannuation Plan, Zurich Retirement Policy and Zurich Allocated Pension. For all other Zurich products, the relevant fee must be paid by cheque to Zurich.

Service provided Fee payable
(GST inclusive)
Who pays?*
 
Percentage split $400

For partial withdrawals, the fee is split evenly between member and non-member spouse.

For full withdrawals the non-member pays full fee.

Base amount split $600
 
Adjusted base amount calculation $1,000
 

*The trustee will charge fees according to this format unless instructed otherwise by the Agreement or Court Order.
Note: These fees may change in the future without notice.

Further information

For general information regarding the changes to Superannuation and Family Law, please refer to the Attorney-General's Department website.

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